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Nobby M. George, Changanassery Tlauk, Rep. by Power of Attorney holder his mother Alice George, Changanassery v/s Jossy Joseph, Kuttanad Taluk, Now Staying With Her Sister Raji Joseph, Erskine Court, Nanuet 10954, New York, USA


Company & Directors' Information:- RAJI POWER PRIVATE LIMITED [Active] CIN = U40109TG1999PTC031472

Company & Directors' Information:- YORK INDIA LTD. [Not available for efiling] CIN = U99999DL1901PLC003613

Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

Company & Directors' Information:- A V GEORGE AND CO PRIVATE LTD [Active] CIN = U51109KL1937PTC000027

Company & Directors' Information:- U S POWER PRIVATE LIMITED [Under Process of Striking Off] CIN = U40103MH2009PTC189364

Company & Directors' Information:- MOTHER INDIA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U51102TN1946PTC001481

Company & Directors' Information:- A V GEORGE AND CO INDIA PVT LTD [Active] CIN = U74999KL1946PTC001390

    Mat.Appeal. Nos. 76 & 166 of 2017

    Decided On, 12 December 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K. HARILAL & THE HONOURABLE MR. JUSTICE C.S. DIAS

    For the Appellant: A.K. Alex, P. Kuruvilla Jacob, Advocates. For the Respondent: R1, P.C. Haridas, Advocate.



Judgment Text


Dias, J.

1. The appellant in these appeals is the petitioner in O.P.617/2014 and the respondent in O.P. No.1692/2012 on the files of the Family Court, Kottayam at Ettumanoor. The respondent herein is the respondent in the former case and the petitioner in the latter case.

2. The appellant is aggrieved by the common judgment passed by the Family Court, dismissing O.P. No.617/2014 and allowing O.P.No.1692/2014. The parties are for the sake of convenience referred to as “appellant” and “respondent”, as per their status in the appeals.

Mat.Appeal No.76 of 2017

3. The appellant had filed O.P. No.617/2014 seeking a decree of divorce to dissolve his marriage with the respondent on the ground that the respondent treated him with cruelty as provided under clause (x) of sub-section (1) of Section 10 of the Divorce Act, 1869.

4. It was his case before the Family Court that he got married to the respondent on 9.8.2008 as per religious rites and customs of their community, and a daughter named Joanna was born in their wedlock on 24.10.2009.

5. According to the appellant, the couple began co-habitation at the appellant's parental home at Changanassery. The marital relationship, right from the inception, was miserable. The respondent did not permit the appellant to enquire about his family and prevented him from sending money for his parents and that she admonished his parents. The appellant had to mortgage his property for raising funds to conduct the marriage of his sister, which was vehemently objected by the respondent.

6. The appellant further averred that the respondent boycotted the betrothal and marriage functions of his sister, which caused mental agony to him. After the marriage of the appellant's sister, the respondent denied a conjugal relationship to him. She demanded him to clear the mortgage, which the appellant was unable to do, for which the respondent tortured him.

7. The appellant further pleaded that the child's baptism ceremony was conducted against his wishes. The respondent did not even show the courtesy to inform the appellant's parents or sister about the function. The respondent refused to visit the appellant's father while he was ailing. After the appellant's father expired, the respondent demanded a share in the appellant's paternal properties.

8. The appellant also pleaded that the respondent filed O.P. No.868/2011 before the Family Court, inter alia, seeking a decree for recovery of patrimony. A compromise was arrived at between the couple, whereby the appellant executed a gift deed in favour of the respondent, settling half his share in his properties in her favour. Thereafter, the couple resumed cohabitation on 10.7.2012.

9. The appellant further pleaded that the respondent under the guise of visiting her relatives, without the consent and knowledge of the appellant, left the matrimonial home on 17.7.2012. The appellant was constrained to file W.P (Crl)376/2012 before this Court. The respondent's relatives filed an affidavit in the writ petition, informing that the respondent had left for the U.S.A. with the child. The writ petition was closed.

10. The appellant then filed O.P. No.986/2012 before the Family Court seeking permanent custody of his daughter. The original petition was allowed granting the appellant's visitation rights. Despite the order, the respondent did not provide visitation rights. In the above compelling circumstances, the appellant was constrained to file O.P. No.617/2014, seeking a decree of divorce to dissolve his marriage with the respondent.

11. The respondent appeared in the case and filed a written objection. She refuted the allegations in the original petition. According to her, on 31.7.2004, on the date of betrothal, her father had entrusted an amount of Rs.3 lakh to the appellant's parents, as her share in her parental properties. The appellant's mother accepted the money and held it as a trustee. The respondent was also given 70 sovereigns of gold ornaments, which she adorned at the time of marriage. She was also given household articles worth Rs.2 lakh.

12. The respondent pleaded that two days after the marriage, the appellant demanded more money and tortured her. After a few days, the appellant compelled the respondent to return to Sharjah, U.A.E, where she was employed as a Psychotherapist. Even though the respondent secured a visa for the appellant, he did not stay there for long. She realised that the appellant was a drunkard, who spent the entire money sent by her for his extravagant living.

13. The respondent further averred that the conduct of the appellant caused her severe distress and insecurity in life, which compelled her to file OP 866/2011 before the Family Court, inter alia, seeking a decree for return of patrimony and gold ornaments.

14. The respondent also pleaded that in the conciliation proceeding before the Family Court, a rapprochement was effected, and the couple decided to resume cohabitation. The appellant executed settlement deed No.1797/2012 in favour of the respondent, transferring one-half of his properties in favour of the respondent towards the re-payment of the amounts that were misappropriated by him.

15. The respondent further averred that, her father, who was settled in the U.S.A, turned sick and was hospitalised. The couple and the child decided to visit him in the U.S.A. Though the appellant made arrangements for getting his travel documents, he retracted from his promise. Accordingly, the respondent and the child travelled to U.S.A. After visiting her father, the respondent returned with the child to Sharjah and resumed her employment. The appellant did not go over to Sharjah, as promised. He instead, on the same day the respondent left for the U.S.A, purchased stamp papers and cancelled the settlement deed. On learning about the cancellation deed, the appellant filed O.P. 1692/2012, for setting aside the document.

16. The respondent further pleaded that she later learnt that the appellant had filed OP No.986/2012 before the Family Court, seeking permanent custody of their daughter. Even though summons was not served on her, she was set ex parte. However, the Family Court dismissed the original petition and granted the appellant only visitation rights.

17. The respondent further averred that the appellant by taking advantage of his own wrong filed the original petition. She never denied visitation rights of the child to the appellant, and their marriage was not irretrievably broken. The respondent prayed that the original petition be dismissed.

Mat.Appeal No.166 of 2017

18. The respondent filed O.P No.1692/2012 before the Family Court to set aside the cancellation deed executed by the appellant cancelling the settlement deed.

19. The respondent pleaded that the settlement deed was executed pursuant to the compromise arrived at between her and appellant in O.P.866/2011. She accepted the settlement deed executed in her favour, and thereafter the appellant had no legal right to cancel the document, as it was a gift deed.

20. The appellant filed a written objection denying the averments in the original petition and justified his action.

21. The Family Court consolidated and jointly tried the original petitions. PW1 and PW2 were examined on the side of the appellant and Exts. A1 to A6 were marked through them. The respondent was examined as RW1 and Exts.B1 to B4 were marked through her.

22. The Family Court after considering the pleadings, the oral testimony of the witnesses and the documentary evidence, allowed O.P. No.1692 of 2012 by setting aside the cancellation deed and dismissed O.P.No.617/2014 on the ground that the appellant had not proved that the respondent had treated him with cruelty.

23. It is challenging the common judgment of the Family Court that the appellant has preferred the appeals.

24. We have heard Adv.A.K.Alex, the counsel for the appellant and Adv.P.C Haridas, the counsel for the respondent.

25. From the facts and circumstances in the case, the following points emerge for determination.

1. Whether the appellant has condoned the acts of cruelty alleged to have been committed by the respondent prior to Ext.B1 compromise?

2. Whether the dissolution of the marriage by the Metropolitan Tribunal by Ext.A4 decree has any relevance to the proceedings before the Family Court?

3. Whether the appellant is entitled to a decree of divorce on the ground of desertion before the completion of two years preceding the presentation of the original petition?

4. Whether the Family Court was justified in dismissing O.P No.617/2014 filed by the appellant seeking a decree of divorce?.

26. As all the above points are intertwined, for the sake of convenience, we decide them together.

27. The appellant had filed the original petition seeking a decree of divorce under Section 10(1) (x) of the Divorce Act, 1869, on the ground that the respondent meted out cruelty on him. However, in the pleadings, it is seen that the appellant has also alleged that the respondent had deserted him.

28. It is an admitted fact that there were differences of opinion between the couple, which led the respondent to file O.P No.866/2011, seeking a decree for recovery of her patrimony and gold ornaments. In that case, the couple arrived at Ext.B1 compromise on 7.7.2012, which was recorded by court, and the case was disposed of. In consonance with the Ext.B1 compromise, the appellant executed Ext.B2 settlement deed on 9.7.2012 settling one-half of his properties in favour of the respondent. It was specifically agreed by the parties that they would resume cohabitation and live together as man and wife.

29. Section 12 of the Divorce Act ,1869 reads as follows:

“Court to be satisfied of absence of collusion”- Upon any such petition for dissolution of a marriage, the court shall satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or not the petitioner has beeb in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery, or has condoned the same, and shall also enquire into any counter charge which may be made against the petitioner”

(emphasis supplied).

30. Section 12 of the Act makes it clear that the petitioner shall not condone any act of cruelty alleged against the respondent.

31. Most of the allegations pleaded in the original petition are incidents that transpired before the execution of Ext.B1 compromise. Therefore, incidents prior to the compromise are deemed to have been condoned by the appellant, as he had empathetically agreed to resume cohabitation with the respondent.

32. The counsel for the appellant argued that the act of the respondent in taking away the child to the U.S.A, without his permission is after Ext.B2 compromise, which caused severe mental trauma and agony to the appellant and that act constituted mental cruelty.

33. The Family Court had dismissed O.P.986/2012 filed by the appellant seeking permanent custody of the child, but granted him only visitation rights. That right was subsequently nullified by the court on being informed that the child was permanently residing outside its jurisdiction. The modification order was confirmed by this Court. Therefore, going by the evidence on record, there was no direction to the respondent to provide visitation rights to the appellant, on the date of filing the original petition. Thus, the appellant's plea that the denial of visitation rights of the child to him by the respondent, constituted caused mental cruelty cannot be accepted.

34. The counsel for the respondent then contended that the Metropolitan Tribunal, Changanassery, had dissolved the marriage between the parties by Ext.A4 decree on 15.2.2016. Hence the marriage is no longer in subsistence and was a ground for the Family Court to dissolve the marriage.

35. This Court in Jacob Mathew V Maya Philip and another [AIR 1999 Ker.192] relying on Canon No.780 held:

“28. Canon No.780 in the Code of Canons of the Eastern Churches lays down that the marriage of Catholics is regulated not only by Divine Law but also by Canon Law, with due regard for the competence of the civil authorities concerning the merely civil effects of such marriage. Therefore,Canon No.780 establishes that the marriage of Catholics is subject to civil law with regard to civil effects of marriage.”

36. A full bench of this Court in George Sebastian v. Molly Joseph [1994 (2) KLT 387] (F.B) held”

“18. Canon Law (or personal law of Christians) can have theological or ecclesiastical implications to the parties. But after the Divorce Act came into force a dissolution or annulment granted under such personal law cannot have any legal impact as statute has provided a different procedure and a different code for divorce or annulment. It may be that a decree of divorce or annulment granted by a civil court cannot compel the ecclesiastical authorities to solemnise a second marriage for any one of the parties thereto. It is open to such authority to insist that until the spiritual bond is also snapped through the steps envisaged in the Canon Law they would not perform or celebrate such second marriage. But the converse is not the legal position. In other words, personal law stands clipped to the extent statutory law has stepped.”

37. In view of the categoric declaration of law by this Court, the dissolution of the marriage by the Ecclesiastical Court is not a ground for the Civil Court to dissolve the marriage. Thus, Ext.A4 is irrelevant and inconsequential, to impel this Court to grant a decree of divorce.

38. The learned counsel for the appellant then contended that the respondent had deserted the appellant since 17.7.2012, which is now more than seven years. It is undisputed that the parties separated on 17.7.2012 and the original petition seeking dissolution of marriage was presented before the Family Court on 26.6.2014.

39. Section 10(1) (ix) of the Act reads as follows:

“10. Grounds for dissolution of marriage:- (1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved, on the ground that since the solemnization of the marriage, the respondent-

(ix) has deserted the petitioner, for at least two years immediately preceding the presentation of the petition.”

40. The above provision makes it mandatory that an original petition for dissolution of marriage on the ground of desertion can be presented only after the respondent has deserted the petitioner for a period of at least two years immediately preceding the presentation of the petition.

41. On evaluating the pleadings and evidence on record, it is seen that the respondent left India on 17.7.2012. Even assuming that the respondent had deserted the appellant as alleged, the original petition was filed on 26.6.2014, i.e. before the expiry of two years. Thus, the petition on the ground of desertion is premature.

42. The Supreme Court in Lachman Utamchand Kirpalani v. Meena [AIR 1964 (4) SC 40], relying on Halsbury's Laws of England (3rd Edn) Vo.12 laid down the ingredients of desertion.

“In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the order without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently the cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there. (1) the factum of separation, and (2) the intention of bring cohabitation permanently to an end (animus deserndi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.”

43. It is apparent from the pleadings and evidence on record that the respondent left India with the child, with the consent of the appellant, who promised to join her. He instead executed Ext.B3 cancellation deed, throwing to the winds Ext.B1 compromise arrived between the parties and thereafter refused to visit U.S.A and live in Sharjah, U.A.E. Therefore, we find that it is the appellant who refused to resume cohabitation compelling the respondent to institute the second round of litigation. Hence the appellant is not entitled to a decree of divorce on the ground of desertion.

44. The learned Judge of the Family Court has on a threadbare analysis of the pleadings and evidence on record rightly concluded that the appellant has failed to prove that the respondent has treated him with cruelty or deserted him. Accordingly, we concur with the findings of the learned Judge in O.P.617/2014 and resultantly Mat.Appeal No.76/2017 stands dismissed.

45. From the facts and circumstances in O.P.1692/2012, the following points arise for consideration

1. Whether the appellant was justified in cancelling Ext.B2 settlement deed pursuant to Ext.B1 compromise?

2. Whether the Family Court was right in allowing O.P. No.1692/2012?

46. For the sake of convenience, we decide the points together.

47. It is an undisputed fact that the respondent had filed O.P.866/2011 before the Family Court seeking a decree for return of money and her gold ornaments that were misappropriated by the appellant. By Ext.B1 compromise, the appellant settled one half of his property in favour of the respondent by Ext.B2 settlement deed. The conveyance deed was a registered instrument signed b

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y the appellant and attested by two witnesses, which was accepted by the respondent, fulfilling the ingredients under Sections 122 and 123 of the Transfer of Property Act. 48. This Court in a case of similar facts, in Balan v. Baby Girija [2013 (2) KLT 619], has declared the law that a gift by a registered document which has been accepted by the donee makes the gift complete, which cannot be revoked unless there are any vitiating circumstances. 49. On a perusal of Ext.B1 compromise and Ext.B2 settlement deed, we find that the appellant had executed Ext.B2 settlement deed, as per the terms of Ext.B1 compromise, on his own free will and volition. The covenants in Ext.B2 prove that the appellant had in unequivocal terms effected the conveyance in fulfillment of Ext.B1 compromise. There is no reservation clause in Ext.B2 conferring any right on the appellant to revoke Ext.B2, if the parties subsequently separated. 50. It can be gathered from the evidence that the appellant on the very same day the respondent left for the U.S.A. i.e. on 17.7.2012, purchased the stamp papers and executed Ext.B3 cancellation deed on 24.7.2012, for which he had no legal right and the same was in hostile breach of Ext.B1 compromise. The appellant has not pleaded or proved that there were any vitiating circumstances compelling him to executed Ext.B3. His only plea was that the respondent in violation of Ext.B1 compromise went away to U.S.A, which point we have already held against the appellant, and further find was not a valid ground to execute Ext.B3. 51. Therefore the conclusion arrived at by the Family Court in O.P.1692/2012 to set aside Ext.B3 cancellation deed was perfectly legal and just. Thus, we confirm the judgment and decree passed in O.P. 1692/2012. In the result: 1. Mat.Appeal Nos.76/2017 and 167/2017 are dismissed, confirming the common judgment and decree dated 31.8.2016 in O.P Nos.617 of 2014 and 1692 of 2012. 2. The parties are directed to bear their respective costs.
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17-03-2020 K.T. Joseph & Another Versus Revenue Divisional Officer, Kottayam & Others High Court of Kerala
16-03-2020 S. Abhirami (Mentally Challenged), Represented by Seeja (Mother) Versus The Employees Provident Fund Commissioner, (Family Pension Division) Kaloor, Kochi High Court of Kerala
11-03-2020 Shyla @ Shymol Kamalasanan & Another Versus Joseph High Court of Kerala
11-03-2020 M/s. Logical Developers Private Limited, New Delhi, Represented by Its Authorized Signatory Jose Joseph, Kochi & Another Versus M/s. Muthoot Mini Financiers Private Limited, Pathanamthitta, Represented by Its Chairman & Managing Director Roy M. Mathew & Others High Court of Kerala
10-03-2020 Karnataka Vidyuth Karkhane Limited V/S Gemini Power Systems High Court Of Karnataka At Bengaluru
10-03-2020 Shail Jiju Versus Biju Joseph & Another High Court of Kerala
09-03-2020 V.Y. Thomas @ Sajimon Versus V.Y. Joseph High Court of Kerala
06-03-2020 Pankaj Kumar Singh Versus National Thermal Power Corp Ltd. & Others High Court of Madhya Pradesh
06-03-2020 A. Gunasekaran & Others Versus Minor Eswararaj, Rep. By next friend and guardian mother Premalatha & Another High Court of Judicature at Madras
05-03-2020 S. Shybudheen, Rep. by his power of attorney agent, Ziauddin Ahmed Versus Reyhana Shmeem Begam & Others High Court of Judicature at Madras
05-03-2020 Muthu Versus M/s. Indusind Bank Limited, Represented by its Power of Attorney R.S. Bharath & Others High Court of Judicature at Madras
05-03-2020 George P. John Versus Alex P. John, Represented by his wife & Power of Attorney holder Shirly Alex High Court of Kerala
05-03-2020 Muthu Versus M/s. Indusind Bank Limited, Represented by its Power of Attorney R.S. Bharath, Deputy Manager – Legal & Others High Court of Judicature at Madras
03-03-2020 Ansy Rajan, (Now Residing in Qatar & Represented by Power of Attorney Holder Tomas George Frederic, Kadavanthra, Kochi) & Another Versus District Collector, Ernakulam & Others High Court of Kerala
03-03-2020 M/s. Srex Power India Pvt. Ltd. & Others Versus State & Others High Court of Delhi
03-03-2020 Jet Airways (India) Ltd., represented by its Airport Manager Versus Thomas Joseph Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
02-03-2020 Suma Wilson, Represented by The Power of Attorney holder, T.O. Paul Versus State of Kerala, Represented by The Chief Secretary, Thiruvananthapuram & Others High Court of Kerala
28-02-2020 Tata Power Delhi Distribution Ltd Having its Registered office at NDPL House, Hudson Lines, New Delhi V/S Delhi Electricity Regulatory Commission Through its Secretary, New Delhi Appellate Tribunal for Electricity Appellate Jurisdiction
28-02-2020 Sabu Joseph Versus Kerala State Election Commission, Represented by Its Secretary, State Election Commission Office, Thiruvananthapuram & Another High Court of Kerala
28-02-2020 Tata Power Delhi Distribution Limited Through its authorized signatory, New Delhi Versus NTPC Limited Through its Chairman, New Delhi & Others Appellate Tribunal for Electricity Appellate Jurisdiction
28-02-2020 M/s. S.S. Enterprises, Rep. by its Proprietrix S. Sumathi, Through her power agent R. Sivaramakrishnan Versus The District Collector, Erode High Court of Judicature at Madras
27-02-2020 Sporta Technologies Pvt. Ltd. & Another Versus Edream 11 Skill Power Private Limited High Court of Delhi
27-02-2020 The District General Manager, BSNL, Kottayam telecom District, Kottayam Bobby Alex George Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
27-02-2020 M/s. Indian Oil Corporation Limited, Represented by its Senior Manager(RS) & Power Agent, S. Gunasekaran Versus V. Sudhakar & Another High Court of Judicature at Madras
26-02-2020 GVK Power (Goindwal Sahib) Limited V/S Punjab State Power Corporation Limited & Another Appellate Tribunal for Electricity Appellate Jurisdiction
25-02-2020 V. Seethapathi Naidu (Died), Rep. by his Power of Attorney Agent Chandrasekaran & Others Versus Government of Tamil Nadu, Rep. by its Chief Secretary, Chennai & Others High Court of Judicature at Madras
24-02-2020 The Branch Manager, The Oriental Insurance Co. Ltd., Divisional Office at Puducherry Versus Prabu, Rajendran, Senthilkumar, Nagappan, Chandrasekar & Minor Balaji, Rep. by his mother & next friend Jothi & Others High Court of Judicature at Madras
20-02-2020 General Manager, Hmt Machine Tools Ltd., Through Its Deputy General Manager (Hr) Shri Joseph Pradeep Keshri Minz, Ajmer (Raj) & Others Versus Controlling Authority, Under Payment of Gratuity Act, 1972 & Assistant Labour Commissioner (Central), Ajmer (Raj) & Others High Court of Rajasthan Jaipur Bench
20-02-2020 Lalu Joseph Versus The State of Kerala, Represented by The Public Proseucutor, High Court of Kerala, Ernakulam for The Circle Inspector of Police, Nilambur High Court of Kerala